Eric Holder, Freedom Of Association, And The Forgotten Case For Restrictive Covenants

The Obama Minority Occupation Government no longer even tries to hide its contempt for the historic American nation. The Department of Housing and Urban Development is now tracking “diversity” in American neighborhoods, under the Orwellian title of “Affirmatively Furthering Fair Housing.” [Obama Administration Using Housing Department in Effort to Diversify Neighborhoods, by Doug McKelway, Foxnews, August 8, 2013] The purpose: to enable government-sponsored “block busting” through lawsuits, presumably to be launched by Eric (“My People”) Holder's Department of Justice. The federal government is doing its best to make sure it is illegal to escape from diversity.

But this is simply the logical conclusion of a decades-long process. The federal government long ago abolished the right of freedom of association, or the ability of private businesses owners, home owners, and landlords to use and dispose of their property as they see fit. Instead, the federal government is now imposing “racial socialism,” where the power of the state is used to take away the property rights of whites and redistribute resources to minorities.

Still, Americans should remember that it wasn't always this way. As with so many of our problems, the end of property rights in America began with a bad decision from the Supreme Court. When America was free, communities enforced so-called “restrictive covenants.” These allowed white neighborhoods to maintain the population balance of their communities—in the same way that immigration enforcement once maintained the existing national population.

It is critical to note that those arguing in favor of restrictive covenants did not argue on the basis of race. They argued on the basis of the right of property owners to protect their investments.

As author David M. Freund wrote in Colored Property: State Policy and White Racial Politics in Suburban America (2010), the real estate industry believed the end of restrictive covenants would destroy long-term property values. According to Freund:

Already by 1917, when the Chicago Real Estate Board (CREB) announced a campaign to organize 'owners societies in every white block for the purpose of mutual defense,' it insisted that realtors were dealing with 'a financial business proposition and not with white prejudice.' Three years later CREB called for the expulsion of 'any member who rented or sold property on a white block to black people,' and in 1924 the National Association of Real Estate Brokers (NAREB) added a clause to its Code of Ethics forbidding members from introducing into a neighborhood 'members of any race or nationality' whose presence 'will clearly be detrimental to property values.'”

Far from being an example of state-sponsored segregation, “restrictive covenants” were the free market in action.

And the U.S. Supreme Court backed this interpretation. Clement Vose notes in Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases that, in the 1926 decision of Corrigan v. Buckley, the Supreme Court unanimously ruled that the Constitution did not prohibit “private individuals from entering into contracts respecting the control and disposition of their own property.” Justice Sanford argued that the issue of denying black people the right to live in white neighborhoods was so insubstantial as to be without merit and frivolous.

If this interpretation were ever overturned, it would provide the wedge that would allow the government to eliminate property rights and break white communities. Therefore, the NAACP made the destruction of restrictive covenants a major focus. Ironically, given its subsequent collapse, Detroit was the chosen battleground.

When restrictive covenants made their first appearance in Detroit in 1910, black leaders immediately protested, even though blacks comprised only 1.2 percent of the population of the city at the time. But the state Supreme Court of Michigan upheld the validity of restrictive covenants in 1922.

From 1940 to 1950, the share of the black proportion of Detroit’s population went from 9 percent to 16 percent. Increasingly, white homeowners, real-estate interests, and government appraisers relied on restrictive covenants to maintain their property values. White homeowners banded together through neighborhood associations and agreed not to rent or sell to African-Americans. By the 1940s, roughly 85 percent of all of Detroit’s residential property was covered by racially restrictive covenants.

The profit motive worked both to preserve and undermine white communities. Speculators used “blockbusting”—fear of new black neighbors would force white homeowners to sell their property at a loss. But other developers actually used restrictive covenants as a selling point. In Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age author Kevin Boyle recounts that one firm proudly proclaimed:

We have carefully restricted this section to include only the kind of people you would be glad to have next door. Here you can feel free to make friends with your neighbors.

The final fatal assault on the white neighborhoods of Detroit, and America, occurred in 1944. A black man named Orsel McGhee bought a home in a white area of Detroit ostensibly covered by restrictive covenants. McGhee occupied the home in the dead of night, fearful of reprisals from his neighbors. But one white neighbor sought a court order to have McGhee evicted and was rewarded with victory when a local judge upheld the restrictive covenant.

The NAACP saw an opportunity. It appealed the decision to the Michigan Supreme Court. But the Michigan Supreme Court upheld legal precedent and ruled unanimously that restrictive covenants had legal standing. According to authors Harry Holzer, Reynolds Farley, and Sheldon Danziger in Detroit Divided (2002), the court even ruled that such legal arrangements could be used to keep neighborhoods explicitly “Caucasian.”

However, the NAACP was not deterred and appealed the case to the federal Supreme Court, along with a similar case from St. Louis.

Of course, the NAACP was not alone. The amicus curiae (“friends of the court”) briefs in favor of eliminating restrictive covenants lists a number of familiar names: the American Jewish Congress, the American Jewish Committee, the Protestant Council of New York City, the Japanese American Citizen’s League, the Anti-Defamation League, the American Civil Liberties Union, the Negro Elks, the Congress of Industrial Organizations, the National Lawyers Guild, the American Indian Council.

In his seminal book Race And Reality, Carleton Putnam quoted a lower Court of Appeals comment on such efforts:

Vociferous minorities of our citizens, instigated by politicians, not statesmen, clamor for judicial denial of public rights under the guise of public welfare… but, the courts ought to be and are ever mindful of that basic thought which underlies representative democracy, ‘Give all power to the many and they will oppress the few, give all power to the few and they will oppress the many. [A] reservoir of protection is to be found in our guaranty of constitutional rights, per example, the right to private contract; and in the hesitancy of the courts to be swayed by that which is seemingly popular for the moment, but which finds little or no sound reason or precedent, either in law in equity.’ [Perkins v. Trustees of Monroe Ave. Church: Ohio Appeals 1947]

But these warnings went unheard. The NAACP and their wealthy and influential allies won a landmark victory in the summer of 1948. The unanimous Supreme Court ruling Shelley v. Kraemer stated that restrictive covenants violated both the Fourteenth Amendment and the Civil Rights Act of 1866.

The results of this decision were both swift and predictable. Sixty-five years after this ruling, Detroit is bankrupt, dangerous, and 89 percent black. Property values are so low that news outlets around the country including the NY Daily News and The Blaze run lighthearted articles about how homes are available in the city for one dollar—and they can't find buyers. Detroit is now insolvent and under the control of the state of Michigan, Cities like Milwaukee, Indianapolis, and Minneapolis are all headed to similar fates—unless property rights are restored.

In America today, it is almost unheard of for a family to pass down a house from generation to generation. This alone tells us a great deal about the dispossession of the historic American nation, and the loss of confidence that Americans have in the future. Today, home ownership in America is a terrible risk, rather than a guarantee of security. The work of a lifetime can be undone in a moment, as the destruction of a home's value is only one Section 8 development away.

What is needed is not necessarily a new political order or a widespread revolution. We simply need to return to the wisdom of our forebears and build a country, as the Constitution says, “for ourselves and our posterity.”

That includes restrictive covenants, because we have the right to build a community that can last.

The historic American nation has to oppose HUD's most recent efforts. But it also has to insist upon the return of one of its fundamental freedom—the freedom of association.

The people who built this country also have the right to build a future that doesn't look like Detroit.

Paul Kersey[Email him] is the author of the blog SBPDL, and has published the books SBPDL Year One, Hollywood in Blackface and Escape From Detroit, Opiate of America: College Football in Black and White and  Second City Confidential: The Black Experience in Chicagoland. His latest book is The Tragic City: Birmingham 1963-2013.